Tuesday, December 13, 2011

Whence Cometh Social and Economic Rights?

By Mike Dorf

Students, lawyers and academics from other countries frequently tell me how odd they find it that the U.S. Constitution has been interpreted to provide virtually no protection for social and economic rights -- or what we sometimes call "positive" or "affirmative" rights, in contrast to "negative" rights. A negative right, as the term suggests, is a right against government interference, whereas a positive right is a right to government assistance. Thus, in the U.S., one has a right not to be beaten by the police, but one lacks a right to the assistance from the police when one is being beaten by a private party, as the Supreme Court held in the DeShaney case in 1989.

By contrast, many constitutions throughout the world enshrine positive rights to such goods as education, housing, and health care. Europeans, Latin Americans, and others who come from countries with such constitutions sometimes say that civil and political rights (of the sort that are contained in the U.S. Constitution as well as their own) are inseparable from social and economic rights (of the sort that their constitutions contain but ours lacks). The idea is that people need at least a minimal level of wellbeing in order for them to exercise their civil and political rights, so social and economic rights are needed for civil and political rights. In the other direction, without civil and political rights, governments will not be accountable to the people and will thus fail to provide for social and economic rights. That's the theory, anyway.

In practice, the differences between the U.S. and the rest of the democratic world are not quite so sharp. For one thing, there is some protection for some social and economic rights in constitutions in the U.S., but the protection is found in state constitutions. Just about every state has a constitutional guarantee of the positive right to a free public education, for example. Meanwhile, foreign constitutions that are protective of positive rights on paper may be less protective in practice. The South African Constitutional Court's decision in the Soobramoney case is perhaps the leading example. There, what was at the time perhaps the leading progressive constitutional court in the world held that, notwithstanding the S.A. Constitution's guarantee of an affirmative right to health care, a chronically ill man was not entitled to kidney dialysis treatment because the state could not afford to provide such treatment to all (or even a substantial fraction of) similarly situated people. In substance, the Court's ruling invoked the same sort of argument that has been used in the U.S. to reject positive rights in toto: Courts should not generally second-guess legislative decisions involving hard questions about the allocation of scarce resources.

Despite the foregoing substantial caveat about practical convergence, it remains fair to say that the U.S. Constitution and constitutional law more broadly are more classically liberal, while more recently adopted democratic constitutions elsewhere, and the bodies of decisional law interpreting them, tend to be more progressive. What accounts for this difference? Does it reflect a different attitude towards courts? Maybe. To use a loaded and somewhat vague term, one might say European constitutional courts have been more "activist" than American courts over the last two decades.

But that trend has reversed in recent years in eastern and central Europe and was arguably never more than a German phenomenon that was copied somewhat unthinkingly in the early post-Communist era. Consider the recent NY Times report that in the negotiations over the latest Euro-saving effort, Germany pushed for a strong role for the European Court of Justice in policing compliance with fiscal rectitude rules, while France pushed back. The Times story attributes the French pushback to residual Gaullist opposition to supranational control of domestic priorities. But another explanation may simply be that France has traditionally been less willing to empower courts, regardless of whether they are French courts or surpranational courts. To be sure, that has changed a bit in recent years, first as the Cour de Cassation widened the scope of justiciable claims and then as the Conseil Constitutionnel was given the power to decide concrete cases, but it is still probably fair to say that the French reflexively trust courts less than Germans do.

Meanwhile, from the other direction, it's counter-intuitive to suppose that Americans are especially distrustful of courts. If anything, the opposite seems to be true. Tocqueville was probably exaggerating when he wrote that "[t]here is hardly a political question in the United States which does not sooner or later turn into a judicial one." But still, the basic sentiment is right. If the U.S. is exceptional relative to the rest of the democratic world, it is not exceptional for its reluctance to turn matters over to courts.

In the end, the simplest explanation probably seems right: The U.S. is less receptive to judicially enforceable economic and social rights than other democracies for the same reasons that the U.S. has a less generous social welfare state. And why is that? Well, that's a much bigger question which I leave for another day.